Duty of Care- Case Law

According to Birmingham Waterworks Co (1856) what is the definition of negligence?

The omission to do something which a reasonable person guided by ordinary considerations would do or doing something a prudent and reasonable person would not do.

Who does the burden of proof lie with to prove the claim, and what elements are needed for a claim to succeed?

The claimant has to prove on the balance of probabilities this may require evidence from expert evidence, case investigations, statements under oath etc.

to succeed:

-owes a duty of care

-has breached that duty

-that the breach causes reasonably foreseeable injury or damage

What are the facts of Donoghue v Stevenson (1932) and what principle did it establish and explain?

Facts:

Friend bought women a ginger beer, drank half, poured out over half, decomposed snail.

Outcome: Found liable

Neighbour principle: that a person must take reasonable care to avoid acts or omissions that can reasonably foresee as being likely to injure their “neighbour”. With neighbour meaning anyone closely or directly affected by the defendants actions.

What are the facts with Caparo v Dickman (1990) and what tests did it create?

The defendants sued the claimant for the provision of statutory accounts that they used to purchase a company, they claimed that the accounts had misled them.

Established three part test:

-was the damage or harm reasonably foreseeable

-is there a sufficiently proximate relationship between the claimant and defendant

-is it fair, just and reasonable to impose a duty

Robinson v Chief Constable of Yorkshire (2018)

Elderly woman knocked over when two police officers were running to arrest a suspect.

Liable breach duty of care

Legal principle: where there is an existing similar precedent for a duty of care that should be followed. Caparo three stage test should be used for novel situations.

Michaels v South Wales CC (2015)

Ms Michaels made 999 call, said her ex boyfriend caught her with her current partner, threatened to kill her, 999 caller didn’t hear threat to kill put situation as not urgent. Later she called again, but by the time police arrived she was found dead.

Outcome: no duty of care owed, to protect another person from harm caused by a third party.

Kent v Griffiths 2000

Suffering from an asthma attack, ambulance called, failed to arrive on time, respite assurances from the call centre, suffered respiratory arrest.

Outcome: harm that was going to occur was reasonably foreseeable and duty of care established.

Bourhill v Young (1943)

Pregnant woman who witnessed the aftermath of a motorcycle accident left shocked gave birth to still born baby.

Outcome: not liable, owed no duty of care as not close or proximate relationship.

McLoughlin v O’Brian 1982

Wife, her husband and children killed in a car accident, whilst at the hospital saw their injured bodies, suffered psychiatric illness and depression.

Outcome: owed duty of care as close and proximate and reasonably foreseeable.

Hill v Chief Constable of West Yorkshire (1990)

Last victims father, said her death could have been prevented as the police had a pretty good knowledge of who the Yorkshire ripper could be.

Outcome: no duty of care owed, not close or proximate relationship. It is not fair, just and reasonable for the police to owe a duty of care to the general public.

Mitchell v Glasgow City Council 2009

Threat to kill made, council called meeting after the meeting man was killed by his neighbour.

Outcome no duty of care owed, as they don’t have a duty to inform the general public or protect. Not foreseeable.

Darnley v Croydon NHS Trust 2018

Man came to A&E, receptionist told him it will take 4-5 hours in reality only take 30 minutes, went home as tired of waiting suffered from extramural haematoma (permanent brain damage).

Outcome: found liable, duty of care owed.

How do you establish a breach of duty?

The claimant needs to show there is a breach, there is an objective standard applied, the duty has been broken if the reasonable person in that role would not have done as the defendant did.

Vaughan v Menlove 1937

Defendants haystack caught fire due to lack of ventilation, warned on numerous occasions.

Outcome: no duty of care owed, as from the objective test a reasonable man could have foreseen the harm occurring.

Wells v Cooper 1958

The doorknob had not been properly attached and the fishmonger fell down the stairs.

Outcome: not in breach, as not a professional carpenter only an amateur.

Shall we judged against someone with the same skill sets.

Bolam v Friern Barnett Hospital Management Committee 1957

Suffered a mental illness, treatment ECT signed consent not warned about risk of broken bones and not given relaxant drugs, suffered from broken pelvis.

Outcome not in breach

If there is a substantial body that would support the course of action then the defendant has not breached the duty of care.

Montgomery v Lanarkshire Health Board 2015

Claimant gave birth to a son with cerebral palsy due to complications, claimed damages against hospital.

Outcome breach in duty of care

Doctor was under duty to disclose risk of major obstetric emergency. And also been told all the different birth options.

Nettleship v Weston 1971

On her third lesson, turn corner and hit a lamppost caused a head injury to Mr Nettleship the driving instructor.

Outcome breach in duty of care

Learners are judged by the standard of the competent, experienced person.

Mullin v Richards 1998

Two fifteen year old girls fighting with rulers, snapped, splinter went in eye, blinded her.

Outcome not in breach of duty

The defendant is judges against the standard of a reasonable 15 year old, not an adult. Meaning that a reasonable 15 year old would not have foreseen such an injury to occur.

Orchard v Lee 2009

13 year old boy ran backwards into a school dinner lady.

Outcome not in breach

Same with the relevance of age, judged against the standard of a reasonable 13 year old.

Paris v Stepney Borough Council 1951

Not provided safety googles, whilst working already damaged in one eye, piece of metal hit his good eye, causing to become blind.

Outcome breach in duty of care

A reasonable person would take greater steps than usual to protect him.

Special characteristics where the effort to counter a risk is not excessive, impose an enhanced duty of care.

Bolton v Stone 1951

Women hit with cricket ball, when it came over the fence from neighbouring cricket pitch. Wall was 70 feet high, only six in 50 years has a ball gotten over, very rare occurrence.

Outcome not in breach, no duty of care owed

-the likelihood very rare

-they took precautions

Everything was done to deal with the low risks, so no breach of duty.

Haley v London Electricity Board 1965

Dug a hole in pavement left the area whilst on break left shovel as a warning, near blind people home, blind person fell in and sustained injuries

Outcome in breach of duty of care

A reasonable person would foresee that damage could occur.

Higher injury of risk requires greater precautions

Latimer v AEC Ltd (1953)

Facts:

Sawdust was spread on the floor of a factory to minimise the risk of a spillage but a worker was still injured

Legal principle

Cannot foresee all harm, only take reasonable precautions

Roe v Minister of Health 1954

Facts: whilst cleaning glass tube, some cleaning left inside due to an invisible crack, whilst giving anaesthetic to patient claimant became paralysed. They didn’t have knowledge at the time that such a risk would occur. Outcome no breach

Legal principle no breach in duty where the risk is not known about at the time

Watt v Hertfordshire County Council 1954

Facts:

Claimant was a fire fighter, didn’t have the vehicle to use the jack, used a different vehicle whilst holding it, it fell on him.

Legal principle: no breach, greater risks can be taken in emergency situations where the need to save a life outweighs the need to take precautions.

Day v High Performance Sports 2003

Facts: whilst 25 feet high woman got scared, duty manager tried to help her down, she fell and suffered brain injury as a result.

Legal principle: no breach, the emergency situation meant that the duty of care towards the claimant had not been breached.

In order to prove damage the claimant has to prove what?

And what test is used to determine it?

The claimant has to show that he/she has suffered actionable damage and that it was caused by the breach of the duty owed. Causation has to prove and this is factual and legal element.

Factual causation use the but for test

But for the defendants actions would the harm still have occurred.

Barnett v Chelsea and Kensington Hospital Management Committee 1969

(Key case establishing factual causation )

The doctor did not examine the 3 night-watchmen one of them died from arsenic poisoning in his tea, widow sued.

Legal principle: no breach

Because due to factual causation, but for the defendants actions the man still would have died.

Even if we were examined it would have been too late and he would have still died.

What is the other causation not factual ?

Legal causation

That a chain of events that lead the tort to occur

Novus actus interveniens can break the chain of causation

The Wagon Mound 1961

Key case for legal causation

Facts: ship, oil spills thought no risk of catching fire, caught fire and damaged the wharf.

Legal principle: no breach

The damage must not be too remote from the breach of the defendants. The injury or damage must be reasonably foreseeable.

Smith v Leech Brain & Co 1962

Facts: was pre cancerous, whilst working metal burnt his lip, was treated, developed cancer and died three years later.

Legal principle: breach in duty of care

Where the consequence is reasonably foreseeable and because of the eggshell skull rule, the defendants were liable for his death.

What is res ipsa loquitur ?

Cause of the accident is unknown but the circumstances strongly suggest negligence on the part of the defendant.

Requires the defendant to show:

• the defendant was in control of the situation which caused injury

• There must have been a negligent act or omission that led to the accident

• No other explanation

If the claimant shows these three points then the burden of proof moves to the defendant to show that he did not commit the damage.

Scott v London and St Katherine Docks 1865

Claimant was a dock worker who was injured when large, heavy bags of sugar fell from the defendants crane and hit him.

Outcome:

Liable

Principle of res ipsa loquitor proven as the claimant could not prove what caused the bags to fall.

For negligence claims there are two main defences, what are they?

1. Contributory negligence

The law reform (contributory negligence ) act 1945 for the reduction of damages awarded to a claimant to the extent that the claimant has contributed to his/her own harm. This means that blame can be apportioned according to the facts of the case.

1. Consent (volenti non fit injuria)

Where a claimant voluntarily accepts the risk of harm

• had knowledge of the precise risk

• Freely chose to take that risk

• Exercise of free choice

For contributory negligence, what is a case that proves this and one the doesn’t ?

Sayers v Harlow Urban District Council 1958

Public lavatory, stuck, climbed, fell

Council was liable, but her damages were reduced by 25% because she tried to escape.

Jayers v IMI KYNOCH LTD 1985

Lost finger, machine

Claimant found to be 100% contributory as it was his fault for taking the guard off.

What happened in ogwo v Taylor 1987 and was volenti non fit injuria proven ?

Defendant, set fire to house by burning off paint, fireman despite wearing protective clothing got severe burns.

Outcome

Consent no proven as, the idea that rescue workers should be faced with the defence of volenti was unjust. They should have the same protection as lay people in rescue cases.

What are damages?

If the claimant is successful in showing they have suffered they will be awarded damages, it is a monetary award to compensate the claimant for their loss or injury.

What are the two types of losses?

Pecuniary

Easily quantified, for example the cost of hiring a car.

Non- pecuniary

Not easily quantified, for example pain and suffering, like not being able to ski ever again after the incident.

What are the two types of damages?

What are the two types of awards?

1. Special damages

Amount calculated to the day of a trial or settlement i.e. losses that have already been incurred and are pecuniary losses.

2. General damages

These are non-pecuniary and look forward from the trial or settlement i.e. losses that will be incurred in the future.

For example, loss of future earnings.

2 type of award

Lump sum settlements and structured settlements

What is mitigation of loss?

This principle means that the claimant can only recover reasonable amount in compensation. This means that they cannot recover excessive unnecessary expenditures.

E.g.

claimant suffers accident and uses money to go on a holiday to the Caribbean for 3 months.